Author: Avtar Singh & Harpreet Kaur

Voluntary Assumption of Risk

Harm suffered voluntarily does not constitute a legal injury and is not actionable. This principle is
embodied in the maxim volenti non fit injuria (where the sufferer is willing no injury is done). A man
cannot complain of harm to the chances to which he has exposed himself with knowledge and of his
free will. The maxim volenti non fit injuria is founded on good sense and justice. One who has invited
or assented to an act being done towards him cannot, when he suffers from it, complain of it as a
wrong (1). The maxim presupposes a tortious act by the defendant. The maxim applies, in the first
place, to intentional acts which would otherwise be tortious. A trespasser, having knowledge that
there are spring guns in a wood, although he may be ignorant of the particular spots where they are
placed, cannot maintain an action for an injury received in consequence of his accidentally treading
on the latent wire communicating with the gun, and thereby letting if off, (2) for he voluntarily
exposes himself to the mischief which happened. But a person, who climbs over a wall in pursuit of a
stray fowl and is shot by a spring gun, set without notice, can recover damages (3).

Consent to Surgical Operations and Participation in Games

The perfectly sound principle underlying this maxim volenti non fit injuria is daily illustrated in
common life. It protects the surgeon who amputates a limb; the football player, boxer, or fencer, so
long as they play fairly according to the rules of the game; and it prevents a person who chooses to
pay a debt barred by the Statute of Limitations, or not enforceable by reason of infancy, from getting
his money back.(4) The application of the maxim is not dependent upon any valid contract. So, a
minor who is capable of making a reasonable assessment of the advantages and disadvantages of a
treatment proposed by a physician or a surgeon can give a valid consent. In Gillick v West Norfolk and
Wisbeck Area Health Authority (5) the House of Lords held that a girl under 16 did not, merely by
reason of her age, lack legal capacity to consent to contraceptive advice and treatment by a doctor. It
was also held that having regard to the reality that a child became increasingly independent as it
grew older and parental authority dwindled correspondingly, the law did not recognise any rule of
absolute parental authority until a fixed age; parental rights were recognised by the law only as long
as they were needed for the protection of the child and such rights yielded to the child's right to
make his own decisions when he reached a sufficient understanding and intelligence to be capable of
making up his own mind. To avoid a claim for personal injury against a doctor, it is not necessary that
the consent should be informed consent meaning thereby an objective criterion of what is a
sufficient disclosure of risk to ensure that the patient is enabled to make an intelligent decision. (6)
The English law does not recognise this doctrine of informed consent and the test of liability in
respect of a doctor's duty to warn his patient of risks inherent in treatment recommended by him is
the same as the test recommended for diagnosis and treatment, namely that the doctor is required
to act in accordance with a practice accepted at the time as proper by a responsible body of medical
opinion (7). As regards spectators at a game, the law has been stated to be as follows:

“A person attending a game or competition takes the risk of any damage caused to him by any act of
a participant done in the cause of and for the purposes of the game or competition notwithstanding
that such act may involve an error of judgement or a lapse of skill, unless the participant’s conduct is
such as to evince a reckless disregard of the spectator’s safety.” (8)

The spectator takes the risk because such an act involves no breach of the duty of care owed by the
participant to him and not because of the doctrine expressed by the maxim volenti non fit injuria. As
regards participants in a sporting event, they may be held to have accepted risks which are inherent
in that sport, but this does not eliminate all duty of care of the one participant to the other; the
question whether there has been a breach of such duty will depend upon a variety of circumstances
and the rules of the sport may be one of those circumstances, but they are neither definitive of the
existence of the duty nor does their breach necessarily constitute a breach of any duty. In a football
match the defendant's foul play resulted in the plaintiff breaking his leg. In a suit for damages, the
defendant was held liable on the finding that he was guilty of ‘serious and dangerous foul play which
showed a reckless disregard of the plaintiff’s safety and which fell far below the standards which
might be expected in any one pursuing the game’. (9)

Consent to run risk of actionable harm

The maxim applies, in the second place, to consent to run the risk of harm which would otherwise be
actionable. The maxim, be it observed, is not ‘scienti non fit injuria' but ‘volenti’. Knowledge is not a
conclusive defence in itself. But when it is a knowledge under circumstances that leave no inference
open but one, namely, that the risk has been voluntarily encountered, the defence is complete. It is
necessary to prove that the person injured knew of the risk, and voluntarily took it. Thus, a person
willingly undertaking to do work which is intrinsically dangerous, notwithstanding that care has been
taken to make it as little intrinsically dangerous as possible cannot, if he suffers, complain that a
wrong has been done to him.(10) But if there is negligence on the part of the employer and he fails
in his duty towards the employed it cannot be said that the employee is willing, and that the
employer should thus a towards him simply because he does not straightway refuse to continue in
service. Il the plaintiff servant is himself in default which leads to his injury, a distinction may have to
be drawn whether it is a case of negligence or volenti. If the plaintiff’s default is the sole cause of the
injury, he would not be entitled to succeed whether l be a case of negligence or volenti, for it does
not matter in the result whether one says 100 per cent contributory negligence or volenti non fit
injuria.(11) But in cases where the plaintiff's default is partially responsible for the injury, he would
succeed to some extent if it is a case of negligence but not at all if it is a case of volenti. For example,
there is a world of difference between two fellow servants collaborating carelessly so that the acts of
both contribute to cause injury to one of them; and two fellow servants combining to disobey an
order deliberately though they know the risk involved. In the first case only a partial defence of
contributory negligence is available but in the second case volenti non fit injuria is a complete
defence if the employer is not himself at fault and is only liable vicariously for the acts of the fellow
servants. (12)

Limitations upon Application of the Maxim

(1) Unlawful Acts

There are certain limitations to the application of this maxim. No consent, no leave or licence can
legalise an unlawful act, e.g. fighting with naked fists, a kicking match or a duel with sharp swords.
But the defendant's conduct should be reasonable. So, when the plaintiff, an old man, challenged the
defendant to fight and on his coming forward menacingly, the plaintiff gave a punch to the
defendant's shoulder who then gave a very severe blow to the plaintiff’s eye with his fist, the injury
needing nineteen stitches and an operation, it was held that neither volenti non fit injuria nor ex
turpi causa non oritur actio applied and the plaintiff was entitled to full compensation for the injury.
(13)

(2) Breach of Statutory Duty

The maxim has no validity against an action based on a breach of statutory duty. Thus, it is no answer
to a claim made by a workman against his employer for injury caused through a breach by the
employer of a duty imposed upon him by a statute. But where the negligence or breach of statutory
duty is on the part of an employee of the plaintiff who knowingly accepts the risk flowing from such
breach and the employer-defendant is not guilty of negligence or breach of statutory duty, the
defence of volenti non fit injuria is available to the defendant. (14)

(3) Consequences of Wrongful Conduct

The maxim does not apply where the plaintiff has, under an exigency caused by the defendant's
wrongful conduct, consciously and deliberately faced a risk, even of death, to rescue another from
imminent danger of personal injury or death, whether the person endangered is one to whom he
owes a duty of protection, as a member of his family, or is a mere stranger to whom he owes no such
special duty. (15) The rescuer will not be deprived of his remedy merely because the risk which he
runs is not the same as that run by the person whom he rescues. (16) This principle, which has been
based upon a weight of authority in America, has been adopted by the Court of Appeal in England.
But where there is no need to take any risk, the person suffering harm in doing so cannot recover.
(17)

(4) Cases of Negligence

Generally, the maxim does not apply to cases of negligence. To cover a case of negligence the
defence on the basis of the maxim must be based on implied agreement whether amounting to
contract or now. (18) The defence is available only when the plaintiff freely and voluntarily , with full
knowledge of the nature and extent of the risk impliedly agreed to incur it and to waive any claim for
injury. Thus, there are several cases where the driver of a vehicle gives a passenger a lift and, at the
same time, gives reasonable notice that he rides at his own risk. The passenger is bound by the
notice and he cannot claim. (19) Similarly when dangerous operations are in progress on land and
are apparent, and the owner gives a license permission, but at the same time gives him reasonable
notice that he comes at his own risk, again, he cannot claim. (20) But when the plaintiff has no choice
or when the notice is given at a stage when it is beyond the ability of the plaintiff to make a choice,
there can be no implied agreement and the defence on the basis of the maxim must fail. (21)

The plaintiff, a police constable, was on duty inside a police station in a street where there were a
large number of people including children. Seeing the defendants runaway horses with a van
attached coming down the street, he rushed out and eventually stopped them, sustaining injuries in
consequence, in respect of which he claimed damages. It was held that as the defendants must or
ought to have contemplated that someone might attempt to stop the horses in an endeavour to
prevent injury to life and limb, and as the police were under a general duty to intervene to protect
life and property, the act of, and injuries to the plaintiff were the natural and probable consequences
of the defendants' negligence and that the maxim volenti non fit injuria did not apply to prevent the
plaintiff from recovering. (22) A horse belonging to the defendants and attached to one of their vans
was seen by the plaintiff running past his house without the driver. It entered a field adjoining the
plaintiff’s garden, and the driver, who had followed it, was trying to pacify it, but as it continued to be
restive, the driver shouted for help. The plaintiff went and attempted to hold the horse, but it threw
him to the ground causing him injuries, in respect of which he sued the defendants. It was held that
the plaintiff must have known that his attempt to hold the horse was attended with risk, and that the
principle of volenti non fit injuria applied and precluded the plaintiff from recovering. (23) This case
has been distinguished from the former case on the ground that there was no need to take any risk.
While the plaintiffs, husband and wife, were in a shop as customers, a skylight in the roof of the shop
was broken, owing to the negligence of contractors engaged in repairing the roof, and a portion of
the glass fell and struck the husband causing him a severe shock. His wife, who was standing close to
him, was not touched by the falling glass, but, reasonably believing her husband to be in danger, she
instinctively clutched his arm, and tried to pull him from the spot. In doing this she strained her leg in
such a way as to bring about a recurrence of thrombosis. In an action to recover damages from the
contractors, it was held that the wife was also entitled to damages along with the husband, since
what she did was, in the circumstances, a natural and proper thing to do. (24)

The plaintiff, knowing that the driver of a motor-car was under the influence of alcohol and that,
consequently, the chances of an accident were thereby increased, chose to travel by that car. She
was injured in an accident caused by the drunkenness of the driver, in Which the driver was killed. In
an action against the personal representative of the driver, the defendant raised the defence of
volenti non fit injuria. It was held that, except perhaps in extreme cases, the maxim did not apply to
the tort of negligence and that the plaintiff was entitled to recover. (25)

The plaintiff, an infant 17 years old, agreed to be carried in the car of the defendant, who was also 17
years old, at the plaintiff's own risk. The car struck a wall due to the defendant's negligence and the
plaintiff was injured. On the question whether the defence volenti non fit injuria was an answer to
the plaintiff's claim for damages, it was held that the plaintiff, though an infant in law, could not
enforce a right which he had voluntarily waived or abandoned, and, accordingly, the defence of
volenti non fit injuria succeeded. (26)

Author: N.V. Paranjape

GENERAL DEFENCES

There are some general exceptions to liability in torts which the defendant may plead in defence of
his act which has caused damages to the plaintiff.

Normally, when a plaintiff brings an action against the defendant for a particular tort and successfully
proves the existence of all essential ingredients of that tort, the defendant is held liable for the same.
But there are some general defences available to the defendant which may absolve him from liability
if he can successfully plead that his wrongful act falls under any of those defences. These defences
have been termed as general exceptions to the liability in tort because normally a defendant is
always held liable for his tortious act but if he can show that his act is covered under any of the
defences recognised under the law of tort, he may avoid liability. These defences are as follows :-

1. Private defence i.e. defence of person or property;

2. Necessity;
3. Inevitable Accident ;
4. Vis Major, i.e., act of God;
5. Mistake;
6. Statutory Authority; and
7. Volenti non fit injuria, i.e., defence of 'consent'.

"Volenti" (Consent) as a Defence

"Volenti" is a good defence in law of tort. This has been expressed by the latin maxim volenti non fit
injuria, meaning thereby that where the plaintiff has consented to a wrongful act, he shall have no
right to sue the defendant. Thus, intentional acts which are otherwise tortious shall incur no liability
of the defendant if plaintiff has consented to them. For instance, where in a auto racing between
plaintiff and defendant, the, plaintiff's car is damaged, he cannot hold the defendant liable for
damages. The rationale of plaintiff's consent as a defence is that where a man is in part a author of
his own injury, he cannot expect other party to compensate him.' This principle is embodied in yet
another maxim nulle-injuia est quae in volenti fiat which suggests that an injury caused by self
consent is not actionable.

The consent of the plaintiff may be express or implied. For instance, where a person consents to a
surgical operation, he cannot sue the surgeon for the tort of battery. (27) Similarly, where a person
invites a guest, he cannot sue him for trespass. The consent of the players participating in the games
of hockey, football, cricket etc. is implied or inferred in case they are injured while playing the game.
Similarly, a person going on a highway is presumed to have consented to the risk of possibility of an
accident. (28) Again, a spectator at a motor race cannot recover if he is hit by a racing car coming off
the track. (29)

It must be stated that the defence of consent under the existing law extends only to the bodily injury
caused to the plaintiff. Where the injury is caused to the plaintiff's property due to his own consent it
is called his leave and licence'.

In Hall v. Brooklands Auto Racing Club (30) the plaintiff was a spectator at a motor car race being held
at Brooklands on a track owned by the defendant company. During racing there was a collision
between the two cars, one of which was thrown among the spectators thereby causing serious
injuries to the plaintiff. When plaintiff sued the defendant for damages, it was held that he had
impliedly taken the risk of such injury, as any spectator watching that sport would reasonably foresee
it. Therefore, the defendant was not liable.

"Where two strangers voluntarily took a lift in a jeep and were injured and one of them subsequently
died due to accident caused because of right wheel which went off the jeep all of a sudden, the
defendant i.e. the master of the jeep and its driver were held not liable" (31)

Commenting on the nature and scope of defence of consent in sports cases Diplock, L.J., in
Wooldridge v. Sumner, (32) inter-alia, observed:

"A person attending a game or competition takes the risk of any damage caused to him by any act of
a participant done in the course of and for the purposes of the game or competition notwithstanding
that such act may involve an error of judgment or a lapse of skill, unless the participant's conduct is
such as to evince a reckless disregard of the spectator's safety." (33)

In T.C. Balakrishnan v. T.R. Subramaniam, (34) the plaintiff who was an spectator at a fireworks show
arranged by the defendant on a open ground on a festival day, was seriously injured because the
explosive instead of flying straight into the sky turned tangently into the crowd and burst there. The
defendant's plea of consent of the plaintiff was rejected by the Court and he was held liable for
negligence. Even otherwise, the defendant would have been held liable applying the absolute liability
principle laid down in the historic

Rylands v Fletcher (35) case

Consent must be free :

The defence of volenti is available only when it is shown that the consent given by plaintiff was free,
that is without any fraud, compulsion or coercion. Not only that, but the act done by the defendant
should also be same for which consent is given. For example, a postman or a meter-reader has
implied consent of the occupier of the house to go up to a particular place to deliver letters or take
reading as the case may be. But if he goes beyond that limit and enters a bedroom or a kitchen
without the permission of the resident, he will be liable for trespass. In case of minors, the consent
of parent or guardians will be admissible as a good defence. Thus where the guardian of a child has
consented to his child's operation by a surgeon the surgeon cannot be sued for operating the child
without his consent.

Consent obtained by Fraud :

Where the act of the defendant is in itself unlawful and prohibited by law, no amount of consent can
convert such an act into a lawful act and therefore, the defendant will be liable despite the consent
of the plaintiff. This is illustrated by the case of R v. Williams (36) wherein the accused, a music
teacher was held guilty of rape when he sought consent of a sixteen years old minor girl for sexual
intercourse by making her believe that such an act was in fact an operation which was necessary to
improve her voice.

The Court held that the act of sexual intercourse being unlawful and a punishable offence, would not
become a lawful act on the ground that the girl had consented to it and the accused had not exerted
any pressure on her to give her consent.

But in R v. Clarance, (37) the husband was held not liable for an offence of intercourse with his wife
and infecting her with a venereal disease even though he had not disclosed her about his suffering by
that disease prior to their marriage. Explaining the reason for not holding the husband liable in this
case, the Court observed that the wife was fully aware about the nature of the act that was being
done although she was not aware of the consequences of that act, and, therefore, her consent was
enough to absolve the husband from liability.

In a similar case viz., Hegarty v. Shine (38) the Irish Court had exonerated the paramour of the
plaintiff from liability for infecting her with a venereal disease by concealing the fact that he was
suffering from such disease. Giving reasons for the decision the Court held that mere concealment of
facts may not amount to a fraud so as to vitiate consent, more so because the plaintiff herself had
consented for an act which was immoral. (39)

Consent given under compulsion is no defence :

Consent is said to be given under compulsion when the plaintiff is placed in a situation to accept the
work which he knows to be risky and dangerous and would have normally not agreed to undertake it
but for the compelling reasons. For example, it generally so happens under the master-servant
relationship that servant has sometimes given consent to work; because its refusal would mean his
losing the job. Therefore, he has to choose between the two evils i.e. either to consent to a risk or to
be prepared to lose the job.

The case of Bowater v. Rowley Regis Corporation, (40) is an illustration wherein consent given by the
plaintiff under compulsion was held to be no consent and therefore, the defendant could not escape
liability. In this case a horse driven cart driver was asked by the defendant to drive with a horse which
the driver knew to have bolted many a times. Therefore he protested to take that horse for driving
the cart but had to ultimately yield to the wishes of the master ie. defendant in order to remain in
job. The horse, as contemplated bolted thereby injuring the plaintiff. Defendant raised the defence of
plaintiff's consent which the Court held was not acceptable as it was tainted by compulsion and the
risk of being thrown out of job.

Mere "scienti" is not volenti :

It must be pointed out the maxim is volenti non fit injuria and not scienti non fit injuria. That is to say,
mere having knowledge is no consent. In other words, having knowledge about a risk or danger is
one thing while consenting to such risk or danger is quite another. For example, the gangmen
working on a railway track have the knowledge about the general risk involved in their work due to
frequent movement of trains from either sides but this does not mean that they have consented to
be knocked down by an approaching train. As rightly pointed out by Winfield, mere having
knowledge about the possible harm does not imply consent to suffer such harm.

In Smith v. Baker (41) the plaintiff was a worker who was employed by the defendants for drilling and
cutting of rocks. The rock stones were being carried from one place to another by the stone over-
head crane passing over the plaintiff's head. While he was at work, a stone fell down from the crane
and injured him. The employers took the defence of plaintiff's consent which was refuted on behalf
of the plaintiff on the ground that he merely had the knowledge (scienti) of the risky nature of the
work but not consented to it. The defendant employers were therefore, held liable for negligence in
not warning the plaintiff of the falling of stone.

It has been observed by Hallet. J., in Marrington v. Ironbridge Metal Works Ltd. (42) that in order to
succeed in his defence of volenti, the defendant must prove that the plaintiff did not merely have the
knowledge of the danger or risk but having this knowledge, he still volunteered to put himself into
that risk. In other words, he must show that plaintiff had consented to the assumption of risk
without compensation. The case of Baker v. T.E. Hokins & Son (43) further illustrates this point.

In that case, a well was filled with poisonous fumes due to negligence of the employer. Two of his
workmen working inside the well were badly affected by these poisonous fumes and therefore, he
called Dr. Baker who advised not to enter the well as it was dangerous and even disastrous. He (Dr.
Baker), however, consented to be dropped inside the well by a rope in order to save the lives of the
two workmen who were struggling to death. He tied the rope around his waist and asked two
women to drop him slowly i side the well and to pull him out of the well if he made a cry for rescue.
As Dr. Baker went down the well he himself was overcome by poisonous fumes and on his shouting
for help, was pulled from the well and moved to hospital where he died. The two workmen inside
the well had already died. Dr. Baker's wife sued the defendants for compensation for her husband's
death. The defendants pleaded volenti, i.e., consent of the deceased Dr. Baker. They asserted that
the deceased had the knowledge of risk involved in getting into the well in which two workmen were
already struggling for life due to effect of poisonous fumes and having full knowledge of the danger
to life involved in getting into the well, he consented to do so. Therefore, as a matter of fact it was
not only his volenti, i.e., consent, but foolhardy to take that risk. The Court however, treated it as a
rescue case and rejecting the defence of volenti, awarded damages to the wife of the deceased Dr.
Baker.

Where while working for the master, the workmen defies the statutory provisions and acts ignoring
the orders and warning of the employer, and thereby suffers injury, the defendant's plea of consent
as a defence would succeed. Thus in Imperial Chemical Industries v. Shatwell, (44) two brothers
Shatwel and James were working in the defendant's quarry. They agreed to explode detonators for
testing without taking necessary precautions and in contravention of the statutory provisions in this
regard. As a result of this Shatwell was badly injured. He sued the defendant employer for damages
holding them vicariously liable for the negligence of the brother James who was an employee of the
defendant. The defendant pleaded volenti, i.e., consent of the plaintiff which was accepted by the
Court.
Dann v. Hamilton, (45) is yet another case where the Court was called upon to draw a distinction
between scienti (knowledge) and volenti (consent). In this case the plaintiff lady was waiting for a
taxi at a taxi stand.

As the defendant's taxi arrived there at about 11.45 p.m. the plaintiff rushed to enter it. A passenger
who got down from the taxi warned the plaintiff that the driver was dead drunk and there was a
possibility of an accident any moment and this is why he was terminating his journey and getting out
of the taxi. But the plaintiff paid no heed to this warning and boarded the taxi at 11.55 p.m. and
merely 8 minutes later the taxi toppled and the plaintiff was seriously injured and the driver was
killed in this accident. She brought an action for negligence of the deceased driver and claimed
damages from his estate under the Law Reforms Miscellaneous Provisions Act, 1934. The defendant's
pleaded that the plaintiff had put herself in the danger despite the warning from the passenger
about the possibility of an accident any time due to drunken condition of the driver, hence it was a
clear case of volenti and therefore, defendants were not liable. But the Court held that the plaintiff
had only knowledge about the risk involved in the taxi which was being driven by a drunken driver
but this does not mean that she had agreed to die. However, this decision, was criticised by many
writers on the ground that this was a clear case of volenti but perhaps the Court hesitated to accept
it as a 'consent' for the reason that in that case defendant would not have been liable and this would
indirectly mean that taxi drivers have the licence to drive in a drunken state and play with the lives of
the passengers. Be that as it may, perhaps it would have been proper for the defendant to raise the
plea of contributory negligence of the plaintiff to succeed in his defence. But as pointed out by Lord
Asquith, " the defence of contributory negligence was not taken into consideration because it was
not so raised by the defendant. (46)

The above case has also been dissented by the High Court of Canada in its decision in Car and
General Insurance Corporation Ltd. v. Saynour & Malony, (47) wherein it was held that the Courts
should deliver its judgments according to "law as it is" and not on the basis of consequences
following therefrom. In the High Court's opinion the decision in Dann v. Hamilton (48) was rather
unfortunate.

In Slater v. Clay Cross of Ltd. Co. (49) the lady plaintiff was hit and injured by the train driven by
defendant's servant while she was walking along a narrow tunnel on a railway track which was
owned by the defendant. The defendant's company was aware that the tunnel was used by local
people as a passage and therefore, had instructed the driver to whistle and pass through the tunnel
at a reduced speed. Since the incident had occurred because of the negligence to ignore these
instructions, the defendants was held liable. Denning L.J. observed that although the plaintiff had
voluntarily taken the risk of the danger but she had not consented to the negligent act of the railway
driver and its consequences. Therefore, her knowledge about the possible danger did not bar the
action against the negligent defendant.

According to Salmond consent of the plaintiff may be a good defence for the defendant under the
following circumstances –

(i) Where the plaintiff has expressly or impliedly consented to suffer the damage or harm resulting
from the risk undertaken by him;

(ii) Where having knowledge about the risk or danger, plaintiff injury or harm; voluntarily puts
himself in that situation and consequently suffers injury or harm;

(iii) In cases where the defendant has done a dangerous or harmful act solely because plaintiff had
the knowledges about the risk or danger involved in that act.
Distinction between Volenti and contributory Negligence :

In the context of consent as a defence, it has to be distinguished from contributory negligence which
is not a defence but only helps in mitigating the quantum of damages. The main points of difference
between the two are as follows:-

1. Volenti, that is consent of the plaintiff is a complete defence to absolve the defendant from
liability, but contributory negligence of the plaintiff reduces the liability of the defendant in
proportion to former's fault as provided under the Law Reform (Contributory Negligence)
Act, 1945. (50)
2. In volenti non fit injuria, although the plaintiff consents to the risk or danger but at the same
time takes due care for his safety (51) but contributory negligence implies negligence of
both, defendant, and the plaintiff.
3. In volenti, the plaintiff is well aware of the nature and extent of the danger which he is going
to undertake but it is not so in case of contributory negligence though he ought to have been
aware thereof.

Exceptions to the doctrine of volenti non fit injuria:

As a general rule consent of the plaintiff completely deprives him of his claim for damages against
the defendant. But there are certain circumstances under which plaintiff can recover damages from
the defendant despite his wilful indulgence in the wrong caused to him. These may be captioned as
exceptions to volenti as a defence.

1. Where the act itself is unlawful and prohibited by law, no amount of consent can make it
lawful and the defendant will be held liable despite plaintiff's volenti for the act. (52) For
instance, in Lane v. Holloway (53) the plaintiff who was an aged person challenged the
defendant for a dual. The defendant accepted the challenge and moved towards the
plaintiff who inflicted a first blow on his shoulder. Enraged by this, the defendant hit hard
at the plaintiff's eye which got badly injured. As a result of this plaintiff had to be
operated for the eye injury and there were as many as nineteen stitches on his face.
When he sued the defendant for damages the latter pleaded volenti (i.e. consent of the
plaintiff) in his defence. Rejecting the defendant's plea, the Court held him liable as the
act was prima facie unlawful and therefore, plaintiff had the right to claim damages.
2. A person guilty of a breach of statutory duty towards another cannot raise the defence
of latter's consent. For example, where a statute lays down a duty on a factory owner to
fence the dangerous machinery or to provide adequate appliances to prevent metal dust
being inhaled by the workers or to avoid use of certain explosive devices etc; he will be
liable for breach of such statutory duty and cannot plead the defence of plaintiff's
consent. (54)
3. The defence of volenti is normally not available in negligence cases. It is generally seen
that drivers give lift to passengers on condition that they should travel at their own risk.
But this does not mean that in the event of an accident they can plead volenti of the
traveller and escape liability. This defence can be available only where in spite of other
means of transport being available, the plaintiff still chose to travel by the defendant's
vehicle (55)
4. The defence of volenti is not available to the defendant in rescue cases. When plaintiff
voluntarily takes a risk to rescue somebody from an imminent danger created by the
wrongful act of the defendant, the defence of volenti will not be available to the
defendant and he shall be liable for the injury or damages caused to the plaintiff. Thus, in
 rescue cases, the plaintiff has full knowledge of the nature and extent of risk or danger
involved in saving somebody and voluntarily lends himself into that danger quite aware
of loss which is likely to fall upon him. Explaining what really constitutes rescue cases,
Justice Cardozo observed, "danger invites rescue, cry of distress is summon to relief-law
does not ignore reactions of mind". In such cases defendant's plea that the plaintiff
voluntarily put himself in danger would fail and he will be held liable.

In Brandon v. Osborne, Garrett & Co. (56) the Court was called upon to consider the liability of
defendant in case the plaintiff assumes risk in order to rescue some other person. In this case, when
husband and wife were making purchases in a shop, the plateglass suddenly fell down from the roof.
Seeing the glass falling upon her husband, the wife pushed him aside to save him from being injured
and in this endeavour her leg was strained and injured. The defendant pleaded that the injury was
due to plaintiff's own risk but the Court allowed damages holding that it was a rescue case and
therefore, the defence of volenti was immaterial in the case.

In Hynes v. Harwood (57) a police constable rushed out from inside a police station to stop the horses
of a van coming down unattended in crowded street and eventually stopped them thus rescuing a
child from being crushed. In this endeavour the constable sustained injuries for which he could
recover damages from the owner of the van whose servant was negligent in leaving the van
unattended on a busy street. The Court held that the defence of volenti is not available to defendant
in rescue cases.

In Hyett v. Great Western Rly Co., (58) the plaintiff an employee of a firm of repairers of railway
wagons, was working in the defendant's premises with their authority to do so. He found smoke
coming out from a wagon and in trying to pull out the fire some drums of paraffin oil from the
wagon, which had been negligently left by the defendant's servants, fell upon him and he was
seriously injured. The Court held that plaintiff was attempting to prevent spread of fire and
therefore, this case fell within the purview of rescue cases.

In an American case, viz., Wagner v. International Rly Company, (59) a railway passenger was thrown
out of the running train due to railway's negligence. When the chain was pulled up and the train
stopped, the friend of the fallen passenger who was also travelling with him, got down and walked
back to search his friend. There was complete darkness and the rescuer missed his footing and fell
down from the bridge and got seriously injured. The Court held the defendant railway company
liable treating the incident as a rescue-case.

In Chadwick v. British Transport Commission, (60) the rescuer was helping voluntarily at the scene of
railway accident near his home. Seeing the miserable plight of those who died and were seriously
wounded, he suffered serious mental shock, though he was physically unhurt. When he sued for
damages, the railway pleaded that he was not a passenger travelling in the accidented train hence
railway owed no liability towards him. But rejecting the railway's plea, the Court held that the fact
that the risk run by the rescuer was not exactly the same as that of a passenger, did not deprive the
rescuer of his claim for damages. The railway was, therefore, held liable.

In the context of rescue cases, the decision in Urbanski v. Patel (61) also deserves to be mentioned.
In this case, the defendant who was a doctor by profession while performing the sterilization
operation of plaintiff's daughter removed her kidney instead of overy. Sooner he detected this
blunder and immediately put the patient on dialysis and was looking for a kidney doner. When
nobody came forward to donate his kidney, the plaintiff, that is, the patient's father, himself
volunteered to donate his kidney to save the life of his daughter. The kidney was transplanted but
unfortunately the operation failed. Thereafter, the plaintiff sued the doctor (defendant for the loss of
his (plaintiff's own) kidney. He was allowed to recover, and the Court dismissed the defendant's plea
that the plaintiff had volunteered himself to donate his kidney and, therefore, defendant was not
liable. The Court noted that the incident being the natural consequence of the defendant's
negligence, he cannot escape liability.

Where plaintiff himself is wrongdoer:

Where defendant in his defence contends that the claimant himself/herself was wrongdoer and,
therefore, not entitled to damages, the Court may take this fact into consideration, but it does not
necessarily insulate him from liability. Thus, in State of Chhattisgarh (through Collector) v. Smt Manju
Bai, (62) The defendant performed the sterilisation operation of the plaintiff's wife, but she
conceived immediately after sterilization operation.

On being sued, the defendant pleaded that the patient herself was responsible for this pregnancy
because she was advised to maintain abstinence from her husband for a period of three months
after the sterilization operation, which she did not do. That apart, she also did not get the pregnancy
terminated Which was permissible under the law. The Court held that the child born to the plaintiff
not being an unwanted child, the claim of compensation was not justified, particularly when the
doctor's negligence was neither pleaded nor proved. The Court observed "merely because a woman
having undergone a sterilization operation became pregnant and delivered a child, the operating
doctor or his employer cannot be held liable for compensation on account of unwanted pregnancy of
unwanted child. The claim in tort in such cases can be sustained only if the negligence on the part of
the surgeon in performing surgery and not on account of childbirth."

In a similar case, namely, Dr. Alice George and another v. Lakshmi (63) plaintiff, a woman having three
children decided to undergo tubectomy operation on advice of doctors. However, despite this
operation, she delivered a fourth child. She was advised not to take treatment for abortion since it
may cause complications in her health. The only defence by defendant's hospital doctors was that
even after sterilization operation, there was approximately 0.5% chances of pregnancy. But since the
defendants failed to prove that operation was done carefully and without any negligence on their
part, the Court awarded damages of Rs. 50,000/- to the plaintiff.

As to the question whether defendant can take a defence and escape liability on the plea that at the
time of his wrongful act the plaintiff was also engaged in doing something wrong, Sir Federick Pollock
has opined that the mere fact that the plaintiff was also a wrongdoer does not ipso facto disentitle
him from claiming damages from the defendant unless there was some unlawful conduct on his part
which is connected with the harm suffered by him. (64) However, he may be disentitled if his
wrongful act is the real cause of his harm. Pollock illustrates this by an example. A bridge which was
under the control of defendant, gave way when an overloaded truck of the plaintiff was passing
through it. The defendant had put a warning on either side of the bridge prohibiting carriers which
were loaded beyond a certain limit. In this case, the bridge would not have collapsed had the
plaintiff's truck not been overloaded and therefore, the conduct of the plaintiff itself was the cause
of collapse. However, the plaintiff would have succeeded if he could have proved that the bridge was
so ill-maintained that it would have given way even if the truck had not been overloaded.

Briefly stated, the correct position of law in this regard is that the plaintiff cannot be deprived of his
right to claim damages merely because he himself was a wrongdoer. If his wrongful act was totally
unconnected with the harm caused to him, he shall be entitled to recover damages from the
defendant. But if plaintiff's wrongful act is the real cause of harm caused to him, then in that case, he
will not be entitled to recover.

Author: J.N Pandey

GENERAL DEFENCES OR JUSTIFICATION OF TORT

Acts done in certain special circumstances are not torts, that is, in absence of those circumstances
the same act may become a tort. Acts done in such circumstances are known as defences of tort or
justification of torts.

There are different defences for different torts, for example in case of defamation, the defence of
justification of truth'. But there are certain general defences which apply in every tort when the
plaintiff brings an action against the defendant. The defendant may take any of these defences and
avoid his liability. The following are the general defences:

• Volenti non fit injuria.

• Act of God.
• Inevitable accident.
• Private defence.
• Acts of necessity.
• Mistake.
• Statutory authority.
• Judicial acts.
• Quasi-judicial Authority.
• Executive Authority.
• Parental and quasi-parental authority.
• Exercise of common rights.
• Acts causing slight harm.

Volenti non fit injuria

Harm suffered voluntarily by the consent of the plaintiff is not actionable. This principle of law is
generally known as volenti non fit injuria i.e., what is consented to is not an injury. The consent may
be of two kinds—

1. express consent
2. implied consent.

(a) Express consent - According to Salmond no man can enforce a right which he has voluntarily
waived or abandoned. Every man is judge of his own interests. If he voluntarily takes the risk or
consents to the harm, then he cannot take any action for it. The defence of volenti non fit injuria is
taken in those cases where an act is done with the consent of the plaintiff, and it causes injury to
him. For example, if I consent to undergo an operation by the surgeon and an injured then I cannot
sue the surgeon because I had given express consent for it. Similarly, if a man enters my house on my
invitation, then I cannot take an action for trespass against him because he enters the house with my
consent.

(b) Implied consent. Sometimes the consent may be implied and can be inferred from the conduct of
parties. In such cases the plaintiff does not gives consent for the injury caused by the act. But he
gives consent to a thing to which the injury complained of is incidental. For example, in a game of
football, hockey or cricket a player impliedly consents to an injury, which are very common in such
games. Similarly, if two men agree to play the game of sword then it is presumed that they impliedly
agree to the danger involved in such games and if one is injured then he cannot take an action
against the other. Similarly, in a game of boxing if one boxer is injured then he cannot sue the other.
This rule also applies to the spectators of such games. Thus, if in a cricket match the ball goes outside
the field and hits a spectator then he cannot sue the player. In such cases, there is implied consent of
the spectator to bear such risks. But if excessive force is applied in the game or unlawful methods are
used and someone is injured then the wrongdoer cannot take the plea of volenti non fit injuria. In
other words, consent cannot make an illegal act legal, for example, according to a rule of the game of
boxing, it must be played with gloves but if a boxer hits the other player with naked fist and injures
him he will be liable.

In Hall v. Brooklands Auto Racing Club, (65) the plaintiff was a spectator in the defendant's race club.
During the race, there was a collision between two cars and as a result one of the car was thrown on
spectators and injured the plaintiff. It was held that the defendant was not liable for the injury
caused to the plaintiff as he had impliedly consented to suffer the damage which was incidental to
such sports (motor race).

In Padmavati v. Dugganaika, (66) when the driver of a jeep was going to a petrol pump for taking
petrol, two strangers took a lift in the jeep. Suddenly one of the bolts on the axle of the right front
wheel gave way resulting in toppling of the jeep. Consequently, the two strangers were thrown out of
the jeep and suffered serious injuries and one of them died. It was held that neither the driver of the
jeep nor the master of the jeep was liable because firstly, it was a case of accident and secondly, the
strangers had voluntarily got into the jeep and therefore the rule of volenti non fit injuria was
applicable to the case. Similarly, spectators who attend a game or competition take the risk of such
damage which are the result of defendant's error of judgment or lapse of skill. Law expects ordinary
care and caution on the part of the defendant, not to show exceptional skill. The duty which the
defendant owes is duty of care, not a duty of skill.

Wooldrige v. Sumner, (67) is a good illustration on this point. In this case, the plaintiff who was a
photographer was taking photograph of a horse show standing near the racetrack of the race course
of the defendant. One of the horses of the defendants rounded the bend too fast. The plaintiff was
frightened by the galloping horse and fell into the track and was seriously injured. In spite of this, the
horse won the race. It was held that the defendant was not liable as he had taken due care. They
could not foresee that someone would, by seeing the horses running at a high speed, fall and be
injured.

In Thomas v. Quartermaie (68) the plaintiff was employed in the defendant's brewery. He was trying
to remove a lid from a boiling vat. The lid was struck, and plaintiff applied extra strength to pull it. It
come off suddenly and the plaintiff fell into the boiling vat and was seriously injured. It was held that
the defendant was not liable as the danger was visible and the plaintiff had taken the risk voluntarily.

Conditions for the application of maxim volent non fit injuria. — The following are the conditions
for the application of the maxim volenti non fit injuria—

1. consent must be free

2. act must be lawful
3. Maxim is volenti, not scienti non fit injuria.

(1) Consent must be free

The defence of volenti non fit injuria will be available to the defendant only when he proves that the
plaintiff's consent to the act done by him was obtained voluntarily. If the consent has been obtained
by fraud or under compulsion or under some mistaken impression, then such a consent will not be a
free consent and will not be a good defence for the defendant.

The consent must be given with the knowledge of the risk involved in the act. It will not be a free
consent if the plaintiff has not been told or made aware of the risk involved in the act.

Consent given under compulsion is no consent — If a person is bound by the law to an act, then the
consent given by him to do that act is not a real consent.

The consent given by a person cannot be considered a free consent until he has the freedom of
choice between the 'act with risk' and 'act without risk'. In such case a man of ordinary prudence will
give consent to do an act without risk. But if a man undertakes an act with risk voluntarily and is
injured then he cannot take the plea of volenti non fit injuria.

There is distinction between 'submission' and 'consent'. Every consent implies submission, but every
submission does not imply consent. Mere submission to an act does not imply consent if the
submission has been obtained by fraud or given under mistaken impression, i.e., without the
knowledge of the real nature of the act.

R. v. Williams, (69) is a good illustration on the point. In this case, the appellant, a music teacher was
appointed to teach music to a girl student of 16 years of age. He had sexual intercourse with the girl
under the pretence that his act was an operation to improve her voice. The girl had no knowledge
that he was going to commit rape with her, otherwise she would not have given her consent for the
act. She gave her consent to the act under the impression that the appellant was doing the act for
improving her voice and not to commit rape with her. She did not know the nature of act. She
misunderstood the very nature of the act which was being done to her. She given consent to the act
under the mistaken impression that it was a surgical operation. The plaintiff was held guilty of rape.
The Court said, "the consent is an act of reason; accompanied with deliberation, the mind weighing
as in balance, the good and evil on each side. Consent means an active will in the mind of a person to
permit the doing of an act complained of, and knowledge of what is to be done of the nature of the
act that is being done.

(2) Act must be lawful

The act to which the plaintiff gives his consent and undertakes to suffer the risk must be lawful and
the method of doing it must also be lawful, otherwise even consent will not be a good defence for
the defendant. Consent cannot make an unlawful act lawful. No person can give consent to other to
commit a crime. For example, according to a rule the boxing game must be played with gloves. If a
person plays this game with naked hand then it will be an unlawful act and cannot be taken as a
good defence in the Law of torts.

(3) Maxim is volenti, not scienti non fit injuria

The maxim is not scienti non fit injuria (knowledge implies consent) but volenti non fit injuria. Mere
knowledge does not imply consent to take risk. It may, however, make it strong or weak according to
the circumstances the case. (70) It is not necessary to prove that the person injured knew of the risk
and voluntarily undertook it. Thus if he willingly undertakes to do an act inherently dangerous, he
cannot, if he is injured, complain that a wrong has been done to him. (71)
In Smith v. Baker (72) the plaintiff was employed as a workman by the defendants for the purpose of
cutting a rock. The stones were being taken from one side to the other by a crane and it passed over
him every time.

The plaintiff and his master both knew that there was danger of stone pieces falling on him at any
moment. Inspite of this, he had consented to do the work. One day due to the negligence of other
workman, a stone fell from the crane and injured him. The employers were negligent in not warning
him about the impending danger although the master had instructed the crane driver to give such
warning every time the crane passed through over his head. The plaintiff sued the defendant
(master) for damages. The defendant pleaded that although there had been negligence on their part
but the plaintiff had consented to do the work with the knowledge of the danger involved in the
work and, therefore, he was not entitled to damages. But the House of Lords held that the
defendants were liable to pay damages to the plaintiff. Mere knowledge of risk does not mean that
the plaintiff has consented of his freewill to suffer the harm. The harm done to the plaintiff was due
to the negligence of employees of the defendant in not warning him of the danger, which they were
bound to do. The master has not only legal duty to make the employee aware of the risk in the work
but also to take every care to protect him from it. The Court said that although the plaintiff was
aware of the risk but it was not inevitable, and was caused due to the negligence of the defendant's
employees to which he had never given his consent. The defendants contention, that in spite of the
knowledge of the risk the plaintiff continued to do his work did mean that he had given his consent
to it, cannot be accepted because had he got choice to choose between the 'dangerous work' and
'non-dangerous work' he would certainly have chosen to do the 'non-dangerous work'.

Cases where the plaintiff gives his consent with the knowledge of the risk, it is necessary to see
whether before giving consent the plaintiff knew the nature of the work and the risk involved in it. If
it is so then it can be concluded that he had expressly consented to do the work. This depends on the
facts and circumstances of each case. For example, if a man agrees to take the work of
manufacturing explosives, then it is clear that he also consents to undertake the risk involved in that
work.

In Bowater v. Rowley Regis Corporation (73) the plaintiff was employed as a cart driver by the
defendants. He was asked by the defendant's foreman to drive a horse, which to the knowledge of
both, was liable to bolt. The plaintiff protested but ultimately in obedience to the order, accepted to
take out the horse. When he was taking the horse out of the stable the horse bolted, and the plaintiff
was injured. The court held that the maxim volenti non fit injuria did not apply in this case and the
plaintiff was entitled to receive damages. In such cases the mere knowledge of the risk did not imply
that he had given consent to take the risk. The Court held that this maxim should be applied in cases
of master and servant relationship with extreme caution. Goddard, L.J., said "That maxim volenti non
fit injuria is one which in the case of master and servant is to be applied with extreme caution.
Indeed, I would say it can hardly ever be applicable where the act to which the servant is said to be
volens arises out of his ordinary duty, unless the work for which he is engaged is one in which danger
is necessarily involved. A man, however, whose occupation is not one of a nature inherently
dangerous but who is asked or required to undertake a risky operation is in a different position, it is
not enough to show that whether under protest or not, he obeyed an order or complied with a
request which he might have declined as one which he was not bound to obey or to comply with. It
must be shown that he agreed that what risk there was should lie on him."

In the case of Dann v. Hamilton, (74) the distinction between "Sciens" (knowledge of risk) and
"volens" (consent to undertake risk) has been pointed very clearly. In this the plaintiff "a lady"
knowing that the driver of the car was drunk, and the possibility of accident was more, decided to
travel by his car. Due to the driver's negligence an accident took place, and the plaintiff was seriously
injured. It was held that the plaintiff was entitled to recover damages against the representative of
the driver who had died in the accident. Although before riding the car the plaintiff knew that there
might be an accident in the state of driver's intoxication, it did not mean that she had consented in
the risk arising out of the negligence of the driver. Thus, maxim does not apply in cases of negligence.

Where a person consents to undertake some risk then the presumption is that the defendant will not
be negligent. For example, if I consent to a surgical operation, and the operation is unsuccessful then
I have no right to bring an action against the surgeon. But if the operation is unsuccessful because of
the surgeon's negligence, I can bring an action against him because I had not given consent to the
risk which was the result of his negligence.

In Slater v. Clay Cross Co. (75) when the plaintiff was crossing a narrow tunnel, she was struck by a
train driven by the defendant's servant and was seriously injured. The defendants knew that the
tunnel was used by the member of public and had instructed their drivers to slow down the train and
to whistle while entering the tunnel. The accident occurred because of the driver's negligence in not
complying with the above instructions. It was held that the defendants were liable. Dunning, L.J., said
"It seemed to me that when this lady walked on the tunnel, although it may be said she voluntarily
took the risk of danger from the running of the railway in the ordinary and accustomed way,
nevertheless she did not take the risk of negligence by the driver. Her knowledge of the danger is a
factor in contributory negligence but is not a bar to the action".

Breach of statutory obligation-Maxim not applicable.—In Imperial Chemical Industries v. Shatwell

(76) the plaintiff and his brother were working in the defendants' quarry. They tried to test an
explosive detonator in violation of his master's order and without any requisite precaution. As a
result of which an explosion took place and the plaintiff was injured. He brought an action for
damages against the defendant and contended that the accident had occurred due to his brothers'
negligence and since the negligence was committed by him in the course of his employment hence
defendants were vicariously liable. But it was held that the defendants were not liable. The plaintiff
had consented to undertake the risk knowingly and, therefore, the maxim volenti non fit injuria
would apply. They had not compelled the plaintiffs to use such dangerous methods of doing the act.

Exceptions to the maxim

In the following cases the maxim valenti fact non fit injuria does not apply—

1. Rescue cases.
2. Under the unfair Contract Terms Act 1977 (England).

(1) Rescue Cases

Rescue cases are exceptions to the maxim of volenti non fit injuria. If the plaintiff voluntarily takes a
risk to rescue somebody from the danger created by the wrongful act of the defendant, the maxim
volenti non fit injuria will not apply and he will have right to bring an action for damages against the
defendant.

Haynes v. Harwood (77) is a leading case on the point. In this case the defendant's servant had left a
horse van unattended in a crowded street. A boy threw a stone on the horses, and they bolted and
started running without the driver causing danger to women and children on the road. The plaintiff, a
police constable, who was on duty inside a nearby police station saw that persons were in grave
danger, ran out and stopped the horses and in doing so he was seriously injured. He brought an
action against the defendant for damages. The defendant contended that since the plaintiff had
voluntarily taken the risk the maxim volenti non fit injuria will apply and he will not be entitled to
damages. But the Court held that in rescue cases' the maxim was not applicable, and the defendants
were liable.

This decision establishes the rile that if a person, inspired from feelings of moral or social obligation
attempts to protect another person from imminent danger of personal injury or even of death,
whether he is a member of his family or a mere stranger to whom he owes no duty, and is injured,
the maxim volenti non fit injuria will not apply and he will be entitled to recover damages from the
wrongdoer. But this principle will not apply in a case where there is no question of protection of a
person from any danger, but a person takes the risk only for his name and fame.

Cutler v. United Dairies, (78) is a good illustration on the point. In this case the plaintiff seeing that
the defendant's horse had gone amuck and fleeing attempted to stop the horse and was seriously
injured. It was held that the principle that mere knowledge of risk does not imply 'consent' rule does
not apply to cases where the plaintiff himself undertakes the dangerous work. There was no need to
take the risk.

In Haynes v. Harwood (79) the defendant in his defence took the plea that the plaintiff had also
contributed to the accident and therefore he was not entitled to take an action. But the Court held
that where the defendant due to his negligence, creates danger for others and the plaintiff
attempted to protect them from the danger and is injured, his action for damages cannot be
negatived on basis of contributory negligence. For example, take the case of Brandon v. Osborne
Garret & Co. (80) In this case the plaintiffs, the husband, and his wife, were purchasing some articles
in a shop. The defendant was getting the roof of the shop repaired. Due to the negligence of
defendant's servants a portion of a glass fell on the plaintiff. The plaintiff's wife, seeing that her
husband was in danger, attempted to protect him and tried to pull him from the spot and was
injured. It was held that the wife was not guilty of contributory negligence, and she did what an
ordinary prudent man would have done in the circumstances and was entitled to damages.

In an American case in Wagner v. International Railway (81) a railway passenger was thrown out of a
running train compartment due to the negligence of the railway company. When the train stopped
his friend got down from the compartment and went to search for his friend. There was darkness
and his foot slipped from the footing and he fell down and got seriously injured. It was held that the
railway company was liable to the rescuer (the plaintiff).

This rule also applies to cases where an attempt is made to protect the life of the negligent person.

Baker v. T.E. Hopkins & Sons (82) is a good illustration on the point. In this case due to the employer's
negligence, a well in which two workmen were working, was filled with a poisonous gas causing
danger to the lives of the workmen. A doctor wanted to help these workmen and tried to go into the
well. He was told not so do so in view of the risk involved in it. In spite of this, he tried to go into the
well and was overcome by poisonous fumes and died on way to the hospital. The doctor's widow
brought an action against the workmen's employers for compensation for her husband's death. It
was held that in such a case the defence of volenti non fit injuria was not available and the
defendants were liable to pay damages to the widow of the rescuer. The Court said that the act of
the rescuer was the natural and probable consequence of the defendant's wrongful act which he
could have foreseen.
Rule applies in case of rescue of property - The principle laid down in the case of Haynes v. Harwood
also applies to cases of rescue of property, whether the property belongs to the rescuer himself or
others.

In Hyett v. Grant Western Railway Co (83) the plaintiff was injured in an attempt to save defendant's
property from fire which had occurred due to the negligence of the defendant. It was held that the
maxim was applicable, and the defendant was liable for damages.

(2) Unfair Contract Terms Act, 1977 (England).

The rule of Volenti not fit injuria has now been abolished in case of personal injury or harm resulting
from negligence. It means that the defendant cannot take the plea that the plaintiff had consented to
suffer the risk to his person by a contract. However, in business cases exemption can be granted by
contract. Section 2(1) of the Act provides that a person cannot by reference to any contract term or
to a notice given to persons generally or to particular person exclude or restrict, his liability for death
or personal injury resulting from negligence. In the case of other loss or damage a person cannot
exclude or restrict his liability for negligence except in so far as the term or notice satisfies the
requirement of reasonableness. [Clause 2(2)].

Leading Cases for References:-

AH1 Smith v Baker & Sons, [1891] AC 225 (HL.).

AH2 Mott v Wilkes, (1820) 3 B & Ald 304. As a result of this case setting spring guns except by
night was made an offence 24 & 25 Vic c 95.
AH3 Bird v Holbrook, (1828) 4 Bin 628.
AH4 Bize v Dickason, (1786) 1 TR 285 (287).
AH5 Gillick v West Norfolk and Wisbech Area Health Authority, [1985] 3 All ER 402 (HL.) 11986] 1
AC 112, [1985] 3 WLR 830.
AH6 Sidaway v Bethlem Royal Hospital Governors, [1985] 1 All ER 543 (HL.).
AH7 Ibid
AH8 Wooldridge v Sumner, [1962] 2 All ER 978 (CA).
AH9 Condon v Basi, [1985]2 All ER 453 (CA), p 455.
AH10 Smith v Baker & Sons, [1891] AC 325 (HL).
AH11 Imperial Chemical Industries v Shatwell, [1964] 2 All ER 999
AH12 Ibid.
AH13 Lane v Holloway, [1967] 3 All ER 129 (CA).
AH14 Imperial Chemical Industries Ltd v Shatwell, [1964] 2 All ER 999, [1965] AC 656.
AH15 Haynes v Harwood, [1935] 1 KB 146 (157).
AH16 Сhadwick v British Trasport Corporation, [1967] 2 All ER 945.
AH17 Cutler v United Diaries (London) Limited, [1933] 2 KB 297
AH18 Burnett v British Water Ways Board, [1973] 2 All ER 631 (635) (CA).
AH19 Buckpitt v Oates, [1968] 1All ER 1145.
AH20 Ashdown v Samuel Williams & Sons Ltd., [1957]1All ER 35.
AH21 Burnett v British Water Ways Board, [1973] 2 All ER 631, p 635.
AH22 Haynes v Harwood, [1935] 1 KB 146.
AH23 Culter v United Dairies (London) Ltd., [1933]2 KB 297.
AH24 Brandon v Osborne Garett & Co., [1924] 1 KB 548.
AH25 Ibid.
AH26 Buckpitt v Oates, [1968] 1 All ER 1145.
PJ27 Rv. Donovan (1934) 2 KB 498.
PJ28 Holmes v. Mather (1875) LR 10 Ex 361.
PJ29 Hall v. Brooklands Autoracing Club, (1932) All ER 208.
PJ30 (1933) 1 KB 205.
PJ31 Padmavati v. Dugganaika (1975) 1 Kant LJ 93.
PJ32 (1963) 2 QB 43.
PJ33 Ibid, p. 68
PJ34 AIR 1968 Ker. 151.
PJ35 (1868) LR 3 HL 330
PJ36 (1923) 1 KB 340
PJ37 (1888) 22 QBD 23
PJ38 (1878) 14 Cox CC 145
PJ39 Ex-turpi causa non oritur actio meaning thereby that no action arises from an immoral act.
PJ40 (1944) KB 476, This ruling was followed by Lord Hudson in imperial Chemical Industries Ltd. v.
Shatwell, (1965) AC 656.
PJ41 (1891) AC 325.
PJ42 (1952) 2 All ER 1101, per Hallet, J.
PJ43 (1959) 1 WLR 965 see also Videan v. British Transport Commission, (1963) 3 WLR 374 (CA).
PJ44 (1964) 2 All ER 909.
PJ45 (1939) 1 KB 509 (518).
PJ46 69 LQR 317.
PJ47 (1956) 2 DLR 369 (Canada).
PJ48 (1939) 1 KB 509.
PJ49 (1956) 2 All ER 625
PJ50 Section 1 (1) of the Law Reform (Contributory Negligence)) Act, 1945.
PJ51 Heard v. N.Z. Forests Products Ltd (1960) NZLR 329 (357).
PJ52 R v. Williams (1923) 1 KB 340.
PJ53 (1967) 3 All ER 139 (CA).
PJ54 Wheeler v. New Morton Board Mills Ltd. (1933) 2 KB 669.
PJ55 Barnett v. British Waterway Board ((1973) 2 All ER 631.
PJ56 (1924) 1 KB 548. This is also known as Sky light Case because the plateglass at the roof of the
shop was meant to allow sun-light to enter the shop.
PJ57 (1935) 1 KB 146; See also Viden v. British Transport Commissioner (1963) 2 QB 650 (CA)
wherein the widow of station master was killed in rescuing his son from an approaching train. She
was entitled to recover.
PJ58 (1948) 1 KB 345 (CA)
PJ59 (1921) 232 NY 176.
PJ60 (1967) 2 All ER 943.
PJ61 (1978) 84 DLR 3d 650.
PJ62 AIR 2007 Chhatisgarh 87, See also, State of Punjab v. Shiz Ram and others, AIR 2005 SC 3280.
PJ63 AIR 2007 Mad 130 : See also State of Harvana v. Santra,
PJ64 Sir Frederick Pollock
PD65 (1932) All ER 208.
PD66 (1975) ACJ 222,
PD67 (1963) 2 QB 43.
PD68 (1887) 18 QBD 685.
PD69 (1923) 1 KB 340.
PD70 Thomas v. Quartermain (1887) 18 QBD 683.
PD71 Smith v. Baker and Sons, (1891) AC 325 (HL).
PD72 (1891) AC 325 (HL).
PD73 (1944) KB 476.
PD74 (1939) 1 KB 509.
PD75 (1952) 2 All ER 625.
PD76 (1952) AC 656.
PD77 (1935) 1 KB 146.
PD78 (1933) 2 KB 297.
PD79 (1935) 1 KB 146.
PD80 (1924) 1 KB 548.
PD81 (1921) 232 NY 176.
PD82 (1959) 3 All ER 255.
PD83 (1948) 1 KB 345.